JUDGMENT : M.G. Giratkar, J. Appellant assailed the judgment in Spl. POCSO Case No. 85/2015 passed by learned Special Judge and Additional Sessions Judge, Chandrapur dated 1-4-2017 by which he is convicted as under :- (1) Appellant/accused is convicted for the offence punishable under Section 354A[1][i] of the Indian Penal Code and sentenced to undergo rigorous imprisonment of three years and a fine of Rs. 2000/. In default of payment of fine to undergo simple imprisonment of one month. (2) Appellant/accused is convicted for the offence punishable under Sections 376[2][f] & [i] of the Indian Penal Code, read with Section 5 and 6 of the Prevention of Children from Sexual Offence Act, 2012 and sentenced to undergo life imprisonment and a fine of Rs. 10,000/-. In default of payment of fine to undergo simple imprisonment of five months. (3) Appellant/accused is convicted for the offence punishable under Section 506II of the Indian Penal Code and sentenced to undergo rigorous imprisonment of three years and a fine of Rs. 2000/-. In default of payment of fine to undergo simple imprisonment of one month. 2. The case of the prosecution against appellant (hereinafter referred to as 'accused') in short is as under. (i) Victim aged about 14 years was residing with her father, brother and sister. Her mother expired before three years of the incident. She was learning in 9th Standard. Since 2015, she was not going to school. She used to do household work. Her father used to do labour work. (ii) Accused is her uncle aged about 25 years. He was married one month before the incident. Accused had illicit relations with one Sujata. There was quarrel between accused and his wife, therefore, she went to her parent's house. Two months before the incident, accused purchased Scooty. Victim requested him to teach her driving. Accused taken her on his Scooty. While victim was driving Scooty, accused pressed her breasts. (iii) On 14-7-2015 at about 5.30 p.m. accused called victim to his house. He gave Rs. 20/- to her and directed her to bring ThumsUp bottle. She purchased ThumsUp bottle and taken to the house of accused. She handed over bottle to the accused and went to her house. She was called by Sujata. She went to the house of accused. Accused given her ThumsUp. She consumed ThumsUp and went to her house. She started cooking. 20/- to her and directed her to bring ThumsUp bottle. She purchased ThumsUp bottle and taken to the house of accused. She handed over bottle to the accused and went to her house. She was called by Sujata. She went to the house of accused. Accused given her ThumsUp. She consumed ThumsUp and went to her house. She started cooking. After cooking, they were about to sleep. Accused called her at about 9.30 p.m. and taken her near railway bridge. Accused pressed her breasts. Accused removed her clothes and did sexual intercourse with her. Accused threatened her if she disclosed incident to anybody, he will kill her. Accused taken her to her house in the night about 3.00 a.m. (iv) On 15-7-2015 at about 5.30 p.m., accused called her. She did not go. Accused tried to drag her. She rescued herself and ran away. She narrated incident to her grandmother. Her grandmother taken her to one social worker Sunita. She disclosed incident before Sunita and grandmother. Thereafter she was taken to child helpline. On 16-7-2015, she was taken to the police station. Her report was reduced into writing by PSI Wakpanjar. (v) Crime was registered (Exhibit 18). API Kale investigated crime. Victim was sent for medical examination. Medical Officer examined her on 16-7-2015. Accused was arrested. Spot panchanama was prepared in presence of panchas. Cloths of accused and victim were seized. Seized property were sent to Chemical Analyser. After complete investigation, chargesheet was filed before the Judicial Magistrate First Class, who in turn committed the same to the Court of Sessions for trial. (vi) Charge was framed at Exhibit 10. Same was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. Prosecution has examined 7 witnesses. Statement of accused under Section 313 of the Code of Criminal Procedure was recorded. He has denied material incriminating evidence against him. At the conclusion of trial, accused came to be convicted as stated above. 3. Heard learned counsel Shri Mandpe for the accused/ appellant. He has pointed out cross-examination of the victim and submitted that incident took place on railway track under the bridge. Medical Officer not found any injury on the person of the victim. Medical Officer not given any definite opinion about the sexual intercourse. 3. Heard learned counsel Shri Mandpe for the accused/ appellant. He has pointed out cross-examination of the victim and submitted that incident took place on railway track under the bridge. Medical Officer not found any injury on the person of the victim. Medical Officer not given any definite opinion about the sexual intercourse. Learned counsel has submitted that there was dispute in between father of victim and accused on account of partition of ancestral property. Therefore, he is falsely implicated in the crime. 4. Learned counsel Shri Mandpe has submitted that age of victim is not proved by the prosecution. Exhibit 55, birth certificate is not proved by examining the concerned officer. Learned counsel has submitted that the victim was more than 18 years old. Learned counsel has submitted that prosecution has failed to prove the guilt of accused beyond reasonable doubt. Learned trial Court wrongly convicted the accused, hence, prayed to allow the appeal and acquit the accused for the offence charged against him. 5. Heard learned Additional Public Prosecutor Shri Sonak for the State/respondent. He has pointed out evidence on record and submitted that victim was minor, aged about 14 years at the time of incident. There was no any reason for the victim to falsely implicate her uncle at the stake of her future/character. Medical evidence of P.W. 6 shows that her hymen was torn. She was subjected to sexual intercourse. 6. Learned Additional Public Prosecutor has submitted that material evidence of victim in respect of her date of birth is not challenged by the prosecution. She was minor at the time of incident, aged about 14 years. Her evidence is corroborated by medical evidence. Evidence of father P.W. 4, P.W. 3 Manoj Patil and P.W. 5 Sunita Singh corroborates her version. Learned trial Court rightly considered all the evidence properly. There is no illegality in the judgment, hence, appeal is liable to be dismissed. 7. Evidence of victim (P.W. 1) show that her mother died four years back. Accused is her uncle. Her father is a vegetable vendor. Accused resides near her house. Marriage of accused was solemnized before the incident. Even after marriage, he had illicit relations with one Sujata. Because of Sujata, there was quarrel in between accused and his wife, therefore, she went to her maternal house. 8. Two months before the incident, accused had purchased Scooty. Her father is a vegetable vendor. Accused resides near her house. Marriage of accused was solemnized before the incident. Even after marriage, he had illicit relations with one Sujata. Because of Sujata, there was quarrel in between accused and his wife, therefore, she went to her maternal house. 8. Two months before the incident, accused had purchased Scooty. Victim requested accused to teach her vehicle. Accused took her on bypass road at about 8.00 p.m. to teach her how to drive the vehicle. At that time, accused had pressed her breasts. She asked him to leave her at home, but, he did not leave her at home and told her that he would teach her how to drive the vehicle. While driving, she gave dash to one car. There was quarrel between accused and car driver. Thereafter she came to house at about 10.00 p.m. 9. On 14-7-2015, accused called her at 5.30 p.m. He gave her Rs. 20/- to bring cold drink from the shop. She brought cold drink. She went to her house. After sometime, Sujata called her saying that accused was calling her. She went to the house of accused. Accused gave ThumsUp bottle. She consumed cold drink and went to her house. Victim has further stated that in the same night about 9.00 to 9.30 p.m. accused called her for sweeping the house. When she went, accused told her that she should come with him. She was feeling dizzy. Accused dragged her to railway track. There was dark. Accused pressed her breasts, fell down her, took out her cloths and committed sexual intercourse with her. She was feeling pain. He took her to one Aunty and left there. At about 3.00 a.m., he came and taken her to her house. Accused threatened her if she narrate this to anybody, he would kill her. 10. P.W. 1 has further stated that on 15th again, accused called her and was taking her to railway track forcibly. She gave him jolt and ran away towards her grandmother. She told her about the incident. Her grandmother took her to the house of Sunita Singh Aunty. She went with her father and grandmother to Sunita Singh. Thereafter they met Manoj and Hemlata. Thereafter she was taken to Balgruha Center. On next day, she lodged report, Exhibit 17. 11. In the night at about 12.00, she was sent for medical examination. Her grandmother took her to the house of Sunita Singh Aunty. She went with her father and grandmother to Sunita Singh. Thereafter they met Manoj and Hemlata. Thereafter she was taken to Balgruha Center. On next day, she lodged report, Exhibit 17. 11. In the night at about 12.00, she was sent for medical examination. In the cross-examination, she has stated that her father and uncle are having ancestral property at Uttar Pradesh. Said property is not partitioned. Her father is not on talking terms with the accused and his family members. She was visiting to the house of accused. There was dispute in between her father and uncle about the partition of property at Uttar Pradesh. It is tried to bring on record in the cross-examination that accused is falsely involved in the crime, but she has denied material suggestions. 12. P.W. 2 has stated in his evidence that police seized cloths of accused and victim vide seizure panchanama, Exhibit 27 to 30. P.W. 3 Manoj Patil has stated in his evidence that police took him to the spot of incident and prepared spot panchanama, Exhibit 34. He was working at Childline 1098. Victim and her father came to them and told them about the incident. Thereafter they went to police station. Police recorded her statement in their presence. 13. P.W. 4, father of victim has stated in his evidence that accused is his step brother. He returned from work at about 6.00 p.m. He took meal with his children. He asked victim to hang mosquito net. When he returned from bathroom, victim was not found. He inquired in the neighbourhood. They searched the victim till 1.00 p.m. At about 3.00 a.m. accused brought his daughter. His daughter was being afraid, she was crying, therefore, he did not ask anything to her. On the next day at about 5.30 p.m., he saw his daughter going along with her grandmother towards the house of Sunita. He also went there. Victim narrated incident to Sunitasingh Thakur and her grandmother. He also heard it. His daughter told them that accused raped her inside railway bridge. She also disclosed that she tried to scream but accused threatened her, therefore, she could not shout. Sunitasingh taken her to Child Helpline and registered her name. Thereafter report was lodged. 14. He also went there. Victim narrated incident to Sunitasingh Thakur and her grandmother. He also heard it. His daughter told them that accused raped her inside railway bridge. She also disclosed that she tried to scream but accused threatened her, therefore, she could not shout. Sunitasingh taken her to Child Helpline and registered her name. Thereafter report was lodged. 14. P.W. 5 Sunita Singh has stated that she helped grandmother of victim for preparing her voting card etc., therefore, her grandmother was knowing to her. Grandmother of victim brought her. Victim narrated the incident. She called para legal aid volunteer. Thereafter they went to office of childline. Victim narrated incident. Report was lodged. 15. P.W. 6 Medical Officer has stated in her evidence that on 16-7-2015, she examined the victim and found following observations :- (1) Her general physical condition was within normal limits. (2) On her genital examination vagina admit one finger easily and two fingers with slight difficulty. (3) Her hymen was old torn, healed at 1.00 O'clock and 4.00 O'clock in position. 16. P.W. 6 Medical Officer answered the queries. Victim was able to have sexual intercourse. She has stated that her hymen had tear. Victim might have been subjected to sexual intercourse and it might have occurred prior to 7 days of medical examination. Victim was referred for ossification test for determining her actual age. Accordingly she issued MLC, Exhibit 45 and 46. 17. P.W. 7 API Chandrakant Kale has stated about the investigation. There is nothing in cross-examination of victim to disbelieve her testimony. Learned counsel has submitted that there was no any injury on the person of victim. It is pertinent to note that photographs of the spot of incident proved by the prosecution show that it was a place under the railway bridge. Incident took place before 23 days of her medical examination. Her evidence cannot be discarded only because there was no injury on her person. There was no any reason for the victim to depose falsely against her uncle. It appears from her evidence that she was always visiting to the house of accused. There was no such enmity as suggested by the defence. Her father was also not objected to her visit to the house of accused. 18. Evidence of victim is corroborated by the evidence of Medical Officer. It appears from her evidence that she was always visiting to the house of accused. There was no such enmity as suggested by the defence. Her father was also not objected to her visit to the house of accused. 18. Evidence of victim is corroborated by the evidence of Medical Officer. As per evidence of Medical Officer, there was sexual intercourse with the victim. Victim was aged about 14 years. Victim has stated her age in her examination-in-chief as 14 years. She has stated that her date of birth is 25-11-2001. This is corroborated by Birth Certificate issued by Municipal Council, Chandrapur. Her date of birth as per Exhibit 55 is 25-11-2001. Ossification test report is at Exhibit 51. It shows that age of victim was in between 14 to 15 years and not less than 14 and not more than 16 years. 19. Learned counsel Shri Mandpe has submitted that ossification test report and birth certificate are not duly proved by examining the concerned officer. In support of his submissions, he pointed out decision in the case of Sunil Vs. State of Haryana reported in 2010 AIR (SC) 392. Their Lordships of Apex Court has held that- “conviction cannot be based on approximate date which is not supported by a record. Omission to get verification from Dental Surgeon and Radiologist, despite, same was referred, held, a serious flaw in prosecution version. No rule that all the tests must be performed in all cases, but, in absence of primary evidence those reports would have helped the Court in arriving at a conclusion regarding the age of prosecutrix. Admission Form of the School not produced. School Leaving Certificate, too, found unreliable.” 20. In the case of State of Himachal Pradesh Vs. Rajeev Kumar & ors. reported in 2017 AllMR(Cri) Journal 432, Their Lordships have observed that- “extracts of Parivar Register is not a legally acceptable piece of evidence. Even for placing reliance on birth certificate, its authenticity is to be established by examining the person making relevant entries. Birth and Death Register produced in Court, however, its authenticity not established. Documentary evidence insufficient to establish age of prosecutrix. Oral evidence of mother that prosecutrix was admitted in the school at the age of 6. At the time of incident, she was student of 10th Standard (after failing twice or thrice). Age of prosecutrix was therefore not less than 18 years. Documentary evidence insufficient to establish age of prosecutrix. Oral evidence of mother that prosecutrix was admitted in the school at the age of 6. At the time of incident, she was student of 10th Standard (after failing twice or thrice). Age of prosecutrix was therefore not less than 18 years. Conduct of prosecutrix in visiting several places with accused without any protest, also demonstrates her maturity.” 21. In the case of Satpal Singh Vs. State of Haryana reported in 2010 ALL SCR 2526, Their Lordships of Apex Court have observed that “entry in school register/certificate requires to be proved in accordance with law. No material to corroborate the date of birth of the prosecutrix recorded in the School Register nor it was shown as to who was the person who had recorded her date of birth in the Primary School Register. It cannot be held with certainty that the prosecutrix was a major.” 22. In the present case, the victim has stated in her deposition before the Court her age as 14 years. She has specifically stated her date of birth as 25-11-2001. This particular evidence is not denied by the defence. Her evidence is corroborated by the Birth Certificate, Exhibit 55. Exhibit 55 is a certified copy of birth register maintained by public authority. Exhibit 55 shows her date of birth as 25-11-2001. Exhibit 51, ossification test report shows that her age was in between 14 and 15 years. Documents, Exhibit 51 and 55 came to be proved by the Investigating Officer. But there is no effective cross-examination to deny both the documents, Exhibit 51 and 55. In fact, defence not denied both the documents, Exhibit 51 and 55. 23. Evidence of victim that her date of birth is 25-11-2001 is not denied in her cross-examination. Document Exhibit 51, ossification test report shows that her age was in between 14 and 15 years. Exhibit 55, certified copy of birth certificate shows that her date of birth is 25-11-2001. Both these documents are not denied by the defence. Moreover, learned trial Court recorded its observation that victim was child at the time of recording her statement. In view of undisputed fact about the date of birth of victim, it is clear that victim was minor below 18 years at the time of incident. Therefore, defence of the accused that she was consenting party for sexual intercourse has no force. 24. In view of undisputed fact about the date of birth of victim, it is clear that victim was minor below 18 years at the time of incident. Therefore, defence of the accused that she was consenting party for sexual intercourse has no force. 24. Medical evidence shows that victim had sexual intercourse. Her hymen was torn. Victim could not dare to disclose the incident immediately to her father because accused who is her uncle threatened her to kill if she disclosed the same. For the first time, victim disclosed the incident before one social worker, namely, Sunita Singh (P.W. 5). Thereafter she was taken to child helpline. Manoj Patil who was working at childline helped the victim to take her to the police station. 25. There is nothing on record to show that accused is falsely implicated by the victim on the say of her father. The only defence of the accused is enmity between him and father of victim on account of partition of joint family property situated at Uttar Pradesh. It is pertinent to note that evidence of victim and her father show that victim was always visiting to the house of accused. This itself shows that there was no such enmity as suggested by the defence. Therefore, false implication by the victim on that ground is not digestible. Moreover, the victim, a young girl, aged about 14 years could not falsely make allegations at the stake of her character and her future life. Victim tried to suppress the act of accused. Previously, accused pressed her breasts but she did not disclose. Even the fact of sexual intercourse was not disclosed by her. She would not have disclosed but accused compelled her to disclose the said fact because on the next day also, accused tried to take her to the same spot (railway line) for sexual intercourse, anyhow, she rescued and ran away. Thereafter, she narrated the incident to her grandmother who had taken her to social worker Sunita Singh. Looking to the relations, victim would not have disclosed but she was compelled to disclose because accused again tried to ravish her. 26. Evidence on record show that victim was aged about 14 years. She has stated her date of birth as 25-11-2001, which is not denied by the defence. Documents viz. Looking to the relations, victim would not have disclosed but she was compelled to disclose because accused again tried to ravish her. 26. Evidence on record show that victim was aged about 14 years. She has stated her date of birth as 25-11-2001, which is not denied by the defence. Documents viz. ossification test report, Exhibit 51 and birth certificate, Exhibit 55 are not denied by the defence in the cross-examination of Investigating Officer who has proved both the documents. Both documents cannot be thrown out merely because authenticity of the documents are not proved. It appears from the cross-examination that both the documents, Exhibit 51 and 55 are admitted by the defence. Her date of birth is also admitted by the defence because it is not denied. 27. Victim was minor, aged about 14 years. Even she was consenting party for sexual intercourse, then also, it constitute an offence of rape. Learned trial Court rightly convicted the accused for the offence charged against him. 28. Learned counsel Shri Mandpe has submitted that accused is a young person aged about 25 years, therefore, sentence awarded by the trial Court be reduced to the minimum. Looking to the age of accused, we find that life imprisonment awarded by the trial Court is a harsh punishment, therefore, minimum punishment is to be awarded. With these findings, we proceed to pass the following order. ORDER (i) The appeal is partly allowed. (ii) Conviction of appellant/accused for the offence punishable under Sections 354A[1][i] and 506II of the Indian Penal Code is maintained. However, conviction of appellant/accused for the offences punishable under Sections 376[2][f] & [i] of the Indian Penal Code read with Section 5 and 6 of the Prevention of Children from Sexual Offence Act, 2012 is modified as under :- “Accused is convicted for the offences punishable under Sections 376[2][f] & [i] of the Indian Penal Code read with Section 5 and 6 of the Prevention of Children from Sexual Offence Act, 2012 and sentenced to suffer rigorous imprisonment for 10 years and shall pay a fine of Rs. 5,000/- (Rupees Five Thousand Only) in default to suffer simple imprisonment for six months.” (iii) Rest of the operative part of judgment passed by the trial Court is maintained as it is. (iv) R & P be sent back to the trial Court.